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United States Court of Appeals
Fifth Circuit
F I L E D
In the
March 15, 2005
United States Court of AppealsCharles R. Fulbruge III
Clerk
for the Fifth Circuit
_______________
m 03-60681
_______________
YU ZHAO,
Petitioner,
VERSUS
ALBERTO R. GONZALES,
UNITED STATES ATTORNEY GENERAL,
Respondent.
_________________________
Petition for Review of an Order of
the Board of Immigration Appeals
m A78 129 956
_________________________
Before SMITH and GARZA, Circuit Judges,
illegally. At a hearing before an immigration
and VANCE,* District Judge.
judge ("IJ"), Zhao applied for asylum and
withholding of removal. The IJ refused to
JERRY E. SMITH, Circuit Judge:
withhold removal and denied asylum on the
ground that Zhao showed neither past
persecution nor a well-founded fear of future
Yu Zhao, a native of the People's Republic
persecution.
of China, attempted to enter the United States
The Board of Immigration Appeals ("BIA"
or "Board") dismissed Zhao's appeal. He filed
*
a motion for reconsideration, contending that
District Judge of the Eastern District of Loui-
siana, sitting by designation.
his fear of future persecution was reasonable

and that the IJ should have given more weight
hearing, but the IJ credited all of his testimony,
to certain documentary and testimonial
which established the following: Falun Gong
evidence.
is a movement that professes to help its
practitioners gain self-understanding through
Zhao petitioned this court to review the
spiritual and physical development. Zhao
BIA's determinations; he consolidated that pe-
started to practice Falun Gong in 1999 to cure
tition with the one he had filed before moving
his "dizzy spells" and back pain. Zhao began
for reconsideration. We grant the petition for
his Falun Gong practice under the tutelege of
review and reverse the Board's decision.
Master Zhao Kai Feng, a mentor he had
known since childhood.
I.
Posing as an American citizen, Zhao tried
In April 1999, Zhao joined about forty
to enter the United States illegally in March
other participants in a silent protest outside the
2000. The government issued a Notice to
Town Hall for Quanto County in Fujian Prov-
Appear, alleging that Zhao was subject to re-
ince. That protest and Zhao's participation in
moval for falsely representing himself as a citi-
it were filmed. Later that year, while he was
zen. Zhao conceded that he was subject to re-
visiting a friend, Zhao's mother told him the
moval but asked for, and was granted, permis-
police had been looking for him and that
sion to file an application for asylum and with-
authorities had arrested Feng. She cautioned
holding of deportation, which he did in July
Zhao not to return home.
2000.
Zhao bicycled to his aunt's house and hid
At his initial hearing, Zhao attempted to
for several weeks. He then learned that the
submit, among other things, three contested
police had arrested other Falun Gong follow-
documents to the IJ: two written notices is-
ers. After hiding out at his aunt's, Zhao trav-
sued to him from Guantou Town's Village
eled by bus to Fuzhou City, where he helped
Committee demanding his appearance at the
his uncle at a construction site, but this activity
Town Government and a police summons de-
was limited, and he was there primarily to
manding his appearance at the police station.
"hide out." During his stay in Fuzhou City,
The government objected, arguing that the
Zhao's mother visited him and told of further
documents did not conform to 8 C.F.R.
police visits to their house.
� 287.6 (2003), the regulation governing proof
of official foreign records.
At the end of February 2000, Zhao traveled
to Beijing by bus because the government had
The IJ agreed with the government but
begun a massive crackdown on Falun Gong
gave Zhao more time to authenticate the docu-
practitioners. Zhao's family soon arranged for
ments. In February 2002 the IJ held a hearing
him to travel to the United States. Zhao found
on the merits of Zhao's application for asylum
it too difficult to hide in the People's Republic
and withholding of deportation. Zhao had not
of China because authorities were "hunting
authenticated the documents pursuant to
down" Falun Gong practitioners everywhere,
� 287.6 by the beginning of that hearing, so
and he believed the United States would afford
the IJ excluded them.
him the protection he needed. In March 2000,
he traveled to the United States with his fake
Zhao was the only person to testify at the
passport.
2

Since then, Zhao has learned that approxi-
Zhao timely filed a motion to reconsider,
mately 200 to 300 Falun Gong practitioners
re-urging the arguments he had raised before
have died during torture and that about 50,000
the IJ and, for the first time, including an ap-
practitioners have been exiled or sentenced to
peal of the IJ's exclusion of his three unau-
hard labor without a conviction. He learned
thenticated documents. He also sought to sub-
that the Chinese authorities had incarcerated
mit other items documenting worsening con-
some practitioners in mental facilities and
ditions in the People's Republic of China.
injected them with medicine that "mess[ed]
up" their nervous systems. Zhao was afraid to
In December 2003, the BIA denied recon-
return to the People's Republic of China,
sideration. It declined to consider the IJ's
where he believes the authorities will imprison
evidentiary ruling because Zhao had failed to
and torture him.
raise it in his initial appeal. Zhao timely pe-
titioned this court to review both the BIA's in-
Zhao practices Falun Gong every morning
itial decision affirming the IJ's findings and its
for twenty to thirty minutes. He has partici-
denial of his motion to reopen.
pated in one public, organized Falun Gong ac-
tivity in the New York/New Jersey area since
II.
his arrival there.
Seeking to introduce the unauthenticated
documents and the two State Department re-
After hearing Zhao's testimony, the IJ de-
ports, Zhao contends that the BIA erred in re-
nied the application for asylum and withhold-
jecting his motion to reconsider. Although
ing of deportation. Although the IJ found that
Zhao labels his motion as one for reconsidera-
Zhao was a credible witness and (grudgingly)
tion, he both re-urges current documents and
that Falun Gong falls within the State Depart-
arguments and seeks to submit new evidence.
ment's operative definition of "religion," the IJ
found that Zhao had not established either past
Because he seeks to introduce new evi-
persecution or a well-founded fear of future
dence, his motion is also one to reopen. See
persecution on account of a protected
Pierre v. INS, 932 F.2d 418, 421-22 (5th Cir.
characteristic.
1991). These two types of post-judgment mo-
tion are distinguished primarily by the fact that
On appeal, the BIA, in a per curiam opin-
a motion for reconsideration does not present
ion, affirmed the IJ's decision under 8 C.F.R.
new evidence to the BIA. Irrespective of how
� 1003.1(e)(5) (2003). The BIA affirmed the
Zhao labels it, we will consider his motion as
IJ's determination that Zhao had not estab-
both one to reopen and one to reconsider. See
lished past persecution and that his fear of
id. at 422.
future persecution was not objectively reason-
able. The Board also noted that Zhao had
A.
"testified that he currently seldom practices
We review the denial of a motion to recon-
Falun Gong and, when he does, he practices in
sider for abuse of discretion.1 A motion for re-
private." The Board found that Zhao had
never had any contact with government offi-
cials "despite traveling about China for
1 Ghassan v. INS, 972 F.2d 631, 638 (5th Cir.
6 months after the police expressed interest in
1992) (citing Osuchukwu v. INS, 744 F.2d 1136,
him."
(continued...)
3

consideration urges an adjudicative body to re-
lacked jurisdiction for other reasons). We now
evaluate the record evidence only. See Ghass-
at last address the issue. Although the parties
an, 972 F.2d at 638. Insofar as Zhao's motion
did not raise or brief this question, we must
was one for reconsideration, his effort fails
examine the basis of our subject matter
because he did not identify a change in the law,
jurisdiction, on our own motion if necessary.3
a misapplication of the law, or an aspect of the
case that the BIA overlooked. See Pierre, 932
Section 1252(a)(2)(B)(ii) proscribes judicial
F.2d at 422.
review of "any . . . decision or action of the
Attorney General the authority for which is
B.
specified under this subchapter to be in the
Zhao sought to reopen the record to intro-
discretion of the Attorney General" (emphasis
duce two new documents. Those documents
added). The government does not raise the is-
are (1) the U.S. Department of Justice Interna-
sue, but there is a question whether � 1252
tional Religious Freedom Reports ("2002 Re-
bars judicial review of all motions to reopen,
ligious Freedom Reports," issued in October
and we may not exercise appellate jurisdiction
2002) and (2) the U.S. Department of Justice
that we do not have. In Medina-Morales v.
Country Reports on Human Rights Practices
Ashcroft, 371 F.3d 520, 528 (9th Cir. 2004),
for 2002 ("2002 Country Reports," issued in
the court held that � 1252(a)(2)(B)(ii) does
March 2003).
not impose a complete jurisdictional bar. The
instant circumstances present a question that is
1.
in all meaningful respects identical, and we
In this circuit, the degree to which 8 U.S.C.
agree with the Ninth Circuit's reasoning.
� 1252(a)(2)(B)(ii) (2000) precludes judicial
review of motions to reopen immigration pro-
The subsection explicitly excepts asylum
ceedings is an open question.2 We have pre-
determinations, made pursuant to � 1158(a),
termitted this "thorny" question where there
from its jurisdictional prohibitions. The
were alternative means of resolving the rele-
operative statutory text precludes judicial
vant issues. See, e.g., Asaad, 378 F.3d at 474
review of all actions specified as discretionary
(declining to reach the issue because the court
under that provision's subchapter "other than
the granting of relief under section 1158(a) of
this title." � 1252(a)(2)(B)(ii). We therefore
1
have two potential sources of appellate juris-
(...continued)
diction: Either (1) Zhao's motion to reopen is
1142-43 (5th Cir. 1984)).
a "granting of relief" under �1158(a) or (2) his
2 The Illegal Immigration Reform and Immi-
motion is not specified as seeking discretionary
grant Responsibility Act of 1996 ("IIRIRA"), Pub.
relief under subchapter II of Title 8. We do
L. No. 104-28, 110 Stat. 3009 (1996), implements
not consider the first possibility, because we
restrictions on federal court jurisdiction over sev-
may easily resolve the question in Zhao's favor
eral categories of BIA decisions. Those restric-
using the second justification.
tions are codified at 8 U.S.C. � 1252 (2004) and
govern judicial review of proceedings commencing
on or after April 1, 1997. See Assaad v. Ashcroft,
378 F.3d 471, 474 n.1 (5th Cir. 2004) (citing
3 See Hill v. City of Seven Points, 230 F.3d 167
Gormley v. Ashcroft, 364 F.3d 1172, 1176 (9th
(5th Cir. 2000) (quoting Mosley v. Cozby, 813
Cir. 2004)).
F.2d 659, 660 (5th Cir.1987)).
4

Outside of the � 1158(a) proviso, the text
One might mistakenly read � 1252(a)(2)-
of � 1252(a)(2)(B)(ii) makes plain that we do
(B)(ii) as stripping us of the authority to re-
not have the jurisdiction to review certain dis-
view any discretionary immigration decision.
cretionary actions of the Attorney General.
That reading, however, is incorrect, because
The law, however, proscribes judicial review
� 1252(a)(2)(B)(ii) strips us only of jurisdic-
of a discretionary action only where it is spe-
tion to review discretionary authority specified
cified under the subsection of title 8 that gov-
in the statute. The statutory language is un-
erns immigration proceedings.
characteristically pellucid on this score; it does
not allude generally to "discretionary au-
Before 1996,4 the authority to reopen a de-
thority" or to "discretionary authority exer-
portation proceeding derived exclusively from
cised under this statute," but specifically to
a regulation promulgated by the Attorney Gen-
"authority for which is specified under this
eral, 8 C.F.R. � 3.2(c) (2003).5 In 8 U.S.C.
subchapter to be in the discretion of the At-
� 1229a(c)(6) (2004), however, Congress set
torney General." Id. (emphasis added).
forth a set of rules governing review of
motions to reopen immigration proceedings.
In ruling on Zhao's motion, however, the
That subsection states that an alien may file
BIA exercised no such statutorily delineated
one such motion, � 1229a(c)(6)(A); specifies
discretion; that discretion instead derived from
that the motion shall "state the new facts that
regulations promulgated by the Attorney Gen-
will be proven at a hearing to be held if the
eral. One might argue that the statute autho-
motion is granted, and shall be supported by
rizes such a regulatory delegation of discretion
affidavits or other evidentiary material,"
and that the underlying activity should there-
� 1229a(c)(6)(B); and sets forth relevant dead-
fore be immune from our scrutiny, but such a
lines, � 1229a(c)(6)(C). These provisions,
construction would belie Congress's conspic-
however, only set forth the standards for eval-
uous selection of the phrase "specified under
uating a motion to reopen; they do not furnish
this subchapter." Aware that there is some
us with a level of deference to afford the At-
caselaw from other circuits to the contrary, we
torney General in making that evaluation.
conclude that we have authority to review the
motion to reopen.6
A federal regulation, 8 C.F.R. � 1003.23-
(b)(3) (2003), furnishes the quantum of discre-
tion the Attorney General enjoys when enter-
6 Two cases, in particular, are in tension with
taining motions to reopen. That regulation
our holding here and that in Medina-Morales. See
provides that an "Immigration Judge has dis-
Yerkovich v. Ashcroft, 381 F.3d 990 (10th Cir.
cretion to deny a motion to reopen even if the
2004); Onyinkwa v. Ashcroft, 376 F.3d 797, 799-
moving party has established a prima facie case
800 (8th Cir. 2004). We disagree with the analysis
for relief." Id.
these cases present regarding whether a regulation,
as opposed to a statute, may be the source of
discretion sufficient to foreclose judicial review.
4 This is the year in which Congress passed the
IIRIRA.
Onyinkwa, id. at 799-800, addresses the dis-
tinction between statutory and regulatory authority
5 See INS v. Doherty, 502 U.S. 314, 322
for discretion in a single sentence: "Since a regu-
(1992); Lara v. Trominski, 216 F.3d 487, 496 (5th
lation implementing subchapter II specifies that
Cir. 2000).
(continued...)
5

In exercising that authority, we review the
Attorney General's delegate, even a deci-
BIA's denial of a motion to reopen or to re-
sion that we deem in error, so long as it is
consider under a highly deferential abuse-of-
not capricious, racially invidious, utterly
discretion standard.7 Our standard of review
without foundation in the evidence, or oth-
is the same irrespective of whether the peti-
erwise so irrational that it is arbitrary rather
tioner seeks withholding of deportation or
than the result of any perceptible rational
makes an asylum request.8 With regard to
approach.
how we actually apply this standard to the
Board's denial of a motion to reopen,
Pritchett, 993 F.2d at 83 (5th Cir. 1993)
(quoting Osuchukwu v. INS, 744 F.2d 1136,
[t]he standard is whether the Board has act-
1141-42 (5th Cir. 1984) (alterations in origi-
ed within the bounds of an abundant discre-
nal)).
tion granted it by Congress. It is our duty
to allow [the] decision to be made by the
2.
In Doherty, the Court held that "[m]otions
for reopening of immigration proceedings are
6
disfavored for the same reasons as are peti-
(...continued)
tions for rehearing and motions for a new trial
power to grant continuances is within the discretion
on the basis of newly discovered evidence."
of immigration judges, under the IIRIRA courts
Doherty, 502 U.S. at 323 (citing Abudu, 485
generally have no jurisdiction to review the exer-
cise of that discretion." We decline to endorse an
U.S. at 107-08). Indeed, 8 C.F.R. � 1003.2-
interpretation whereby any statutorily authorized
(c)(1) states that "[a] motion to reopen pro-
regulation conferring discretion necessarily fore-
ceedings shall not be granted unless it appears
closes judicial review. Such a reading is contrary
to the Board that the evidence sought to be of-
to Congress's language and has adverse policy
fered is material and was not available and
consequences.
could not have been discovered or presented at
the former hearing . . . ."
Yerkovich does not even mention the distinction
between a statute and a regulation furnishing
The Board did not abuse its discretion in re-
discretionary authority. The court quotes Van
fusing to reopen the record to admit the unau-
Dinh v. Reno, 197 F.3d 427, 433 (10th Cir. 1999),
thenticated documents. Those documents had
in support of the proposition that a motion to re-
been presented before the IJ, who excluded
open cannot be subject to judicial review. Van
them, and Zhao failed to contest this ruling on
Dinh itself, however, misstates the statutory text,
direct appeal. Although the documents are
omitting the phrase "the authority for which is spe-
cified" before "under this subchapter." By selec-
material, � 1003.2(c)(1) is stated in the con-
tively (or inadvertently) omitting this language, the
junctive, and the documents were plainly
Yerkovich and Van Dinh courts analyze statutory
available and considered in the hearing before
language that Congress did not adopt.
the IJ.
7 Lara, 216 F.3d at 496 (citing Doherty, 502
The BIA's failure to re-open the record to
U.S. at 322-23; Pritchett v. INS, 993 F.2d 80, 83
admit the 2002 International Freedom Reports
(5th Cir. 1993)).
and the 2002 Country Reports, however, rests
8
on far more precarious logic. The BIA
See Doherty, 502 U.S. at 323 (quoting INS v.
dispenses, in a single sentence, with Zhao's at-
Abudu, 485 U.S. 94, 99 n.3 (1988)).
6

tempt to reopen the record to admit these doc-
1999 Country Reports. Here the government
uments: "To the extent that [Zhao] seeks re-
is somewhat disingenuous. When, at oral ar-
opening for the submission of previously un-
gument, the government sought to rebut the
available evidence, we find insufficient cause
contention that the Chinese government perse-
to reopen, as [Zhao's] new evidence largely
cutes mere practitioners of Falun Gong, it re-
repeats the extensive country condition infor-
minded us that evidence regarding Chinese
mation already in the record." As we overturn
persecution of non-leaders was contained in
this ruling, we take full account of the broad
the 2002 Country Reports, not the 1999 re-
discretion delegated to the Board in adjudicat-
ports. The government cannot simultaneously
ing these motions. Here, however, the Board
argue that, on the one hand, the 2002 Country
erred egregiously in its conclusion.
Reports contain a crucial piece of evidence
that is absent from the 1999 Country Reports
The Board requires an applicant to provide
in the record and, on the other, that the two
corroborating evidence where it is reasonable
new documents are redundant.
to do so. Specifically, "general background
information about a country, where available,
According to the Department of State
must be included in the record as a foundation
International Religious Freedom Report 2002,
for the applicant's claim." Matter of S-M-J,
21 I. & N. 722, 724 (1997) (emphasis added).
Since the [Chinese] Government banned
the [Falun Gong] in 1999 and began a com-
prehensive nationwide repression of the
The IJ issued her decision on February 5,
movement, the practice of Falun Gong or
2002, before publication of the 2002 Interna-
possession of its literature has been suf-
tional Freedom Reports and the 2002 Country
ficient grounds for practitioners to receive
Reports. Although S-M-J deals with an asy-
punishment ranging from loss of employ-
lum applicant's failure to include crucial back-
ment and education opportunities to im-
ground documentation, it would be a bizarre
prisonment. Some Falun Gong members
policy indeed to require the applicant to pro-
have been tortured in custody and there
vide the Country Reports before the issuance
have been reports that several hundred or
of an IJ's final order, but categorically to re-
more Falun Gong adherents have died in
fuse to allow him to introduce them, once they
detention since 1999. Falun Gong mem-
become available, on a motion to reopen.
bers who "disrupt public order" or distrib-
That is not to say that any or even a substan-
ute publications may be sentenced to 3 to 7
tial variety of documentation should require
years in prison . . . .
the BIA to reopen asylum proceedings, but it
is to say that, in the name of legal consistency,
(Emphasis added.) The next paragraph of that
there must be some situations in which the
document adds that "[e]ven [non-protesting]
content of the new documentation requires
practitioners . . . were forced to attend [anti-
that result.
Fulon Gong] classes. Those who refused to
recant their belief . . . were sent to reeduca-
The government argues, as the BIA rea-
tion-through-labor camps, where, in some cas-
soned, that the 2002 Country Reports do not
es, beatings and torture were used to force
justify reopening the record because they
them to recant their beliefs."
merely restate the conditions described in the
7

The 2002 Country Reports echo this de-
III.
scription of lower-level practitioners' treat-
Under 8 U.S.C. � 1158(a) (2004) the
ment: "Since the [Chinese] Government
Attorney General enjoys authority to grant
banned the [Falun Gong] in 1999, the mere be-
asylum to any alien who qualifies as a refugee
lief in the discipline (and since January, even
under � 1101(a)(42)(A). For purposes of this
without any public manifestation of its tenets)
statute, a refugee is
has been sufficient grounds for practitioners to
receive punishment ranging from loss of
any person who is unable or unwilling to
employment to imprisonment." (Emphasis
return to, and is unable or unwilling to avail
added.)
himself or herself of the protection of, that
country because of persecution or a
If the position of the United States Govern-
well-founded fear of persecution on ac-
ment is that the record evidence introduced at
count of race, religion, nationality, mem-
the initial administrative hearing does not dem-
bership in a particular social group, or pol-
onstrate that mere practitioners were the
itical opinion . . . .
objects of Chinese government persecution,
then the previously unavailable documents
8 U.S.C. � 1101(a)(42)(A) (emphasis added).
Zhao sought to introduce into the record must
be admitted on a motion to re-open, because
they establish precisely that crucial proposi-
The decision to grant or deny asylum in-
tion.9 The BIA abused even its abundant
volves two components. First, the alien must
discretion in failing to allow the documents to
demonstrate that he has been persecuted or
be introduced.10
has a well-founded fear of persecution on ac-
count of one of the factors listed in � 1101(a)-
(42)(A).11 That the alien qualifies as a refugee
under the statute does not, however, auto-
matically entitle him to asylum. The language
9 Alternatively, if the government's position is
of � 208 is precatory, and the decision to grant
that the 1999 Country Reports suggest all of this
or deny asylum is within the IJ's discretion.12
information, then we would be forced to hold,
based only on a review of the existing record, that
The IJ found that there was no evidence of
it abused its discretion.
past persecution and that Zhao's credited testi-
10 Zhao contends that the IJ erred as a matter of
mony was legally insufficient to establish a
law when she excluded his three supporting doc-
well-founded fear of future persecution. Spe-
uments under 8 C.F.R. � 287.6. This argument is
cifically, the IJ found that Zhao had presented
distinct from Zhao's assertion that the BIA erred in
no evidence that any Chinese government of-
refusing to reopen the record to admit these same
ficial ever confronted him at any time for any
documents; accordingly, it is subject to a different
reason. The IJ did not question Zhao's verac-
analysis. We need not resolve this question, how-
ever, because (1) the current record does not
demonstrate the steps, if any, that Zhao took to au-
11 See Mikhael, 115 F.3d at 303; Faddoul v.
thenticate the documents; and (2) we grant Zhao's
INS, 37 F.3d 185, 188 (5th Cir. 1994).
petition and reverse the Board on the record evi-
dence and the supplementary documents Zhao first
12 Mikhael, 115 F.3d at 303; Faddoul, 37 F.3d
sought to introduce on his motion to reopen.
at 188.
8

ity but stated that "Zhao simply failed to make
jective fear of persecution, and that fear must
his case." That the IJ did not doubt Zhao's
be objectively reasonable." Eduard v. Ash-
testimony is significant, because we must
croft, 379 F.3d 182, 189 (5th Cir. 2004)
accept as true all the facts to which Zhao
(quoting Lopez-Gomez v. Ashcroft, 263 F.3d
testified. The question is merely the interpre-
442, 445 (5th Cir. 2001)). The INA does not
tation and legal sufficiency of those facts.
define persecution, but we have described it as
"[t]he infliction of suffering or harm, under
A.
government sanction, upon persons who differ
We use the substantial evidence standard to
in a way regarded as offensive (e.g., race,
review the IJ's factual conclusion that an alien
religion, political opinion, etc.), in a manner
is not eligible for asylum. See Chun, 40 F.3d
condemned by civilized governments." Ab-
at 78 (citing Adebisi, 952 F.2d at 912). Under
del-Masieh v. INS, 73 F.3d 579, 583-84 (5th
substantial evidence review, we cannot reverse
Cir. 1996). "The harm or suffering need not
the BIA's factual determinations unless we
be physical, but may take other forms, such as
decide "not only that the evidence supports a
the deliberate imposition of severe economic
contrary conclusion, but also that the evidence
disadvantage or the deprivation of liberty,
compels it." Id. (citing INS v. Elias-Zacarias,
food, housing, employment or other essentials
502 U.S. 478, 481 n.1 (1992)). The alien
of life." Id. The applicant, however, need not
must prove that the evidence is so compelling
provide evidence that he would be singled out
that no reasonable factfinder could reach a
for persecution, if
contrary conclusion. See id. "[I]t is the
factfinder's duty to make determinations based
(A) [he] establishes that there is a pattern
on the credibility of the witnesses." Id. (citing
or practice in [his] country . . . of persecu-
Vazquez-Mondragon v. INS, 560 F.2d 1225,
tion of a group of persons similarly situated
1226 (5th Cir. 1977)). We will not substitute
. . . on account of race, religion, nationality,
our judgment for that of the BIA or IJ "with
membership in a particular social group, or
respect to the credibility of witnesses or ul-
political opinion; and
timate factual findings based on credibility
determinations." Id.
(B) [he] establishes [his] own inclusion in,
and identification with, such a group of per-
1.
sons such that [his] fear of persecution
There is no error in the IJ's determination
upon return to that country is reasonable.
that Zhao has failed to demonstrate past perse-
cution. Zhao points to no evidence that the
8 C.F.R. � 208.13(b)(2)(iii)(A)-(B) (2003).
government ever arrested, detained, interro-
There are therefore two different ways for
gated, or harmed him or his family. See
Zhao to prove the objectivity of his persecu-
Faddoul, 37 F.3d at 188. As the IJ noted,
tion claim. First, he can show that he would
there is no evidence in the record that a gov-
be singled out for persecution. Alternately, he
ernment official ever confronted Zhao because
can satisfy the two prongs of � 203.13(b)-
of his involvement in Falun Gong.
(2)(iii).
2.
The IJ explicitly credited Zhao's testimony,
To establish a well-founded fear of future
so Zhao's possession of a subjective fear is not
persecution, an alien must demonstrate "a sub-
at issue. With regard to the well-founded fear
9

of future persecution, the alien's "subjective
Gong practitioner (although it is fairly certain
fear will satisfy this standard if `a reasonable
from the record that it was), but merely that
person in [his] circumstances would fear
that government easily could become aware of
persecution if [he] were to be returned to [his]
such status. See id. at 192-93.
native country.'" Faddoul, 37 F.3d at 188
(quoting Guevara Flores v. INS, 786 F.2d
With regard to Zhao's alleged fear of future
1242, 1249 (5th Cir. 1986)). This standard,
persecution, the IJ found that
however, does not require Zhao to demon-
strate that he will be persecuted on returning
[t]he respondent argues that he is con-
to the People's Republic of China. It requires
cerned about the future persecution. How-
a lesser showing of certaintySShe must show
ever, the respondent also has indicated that
"to a reasonable degree" that his return there
he has not been very much involved in the
would be intolerable. See Eduard, 379 F.3d at
practice of the spiritual exercise. In fact, he
189 (citing Mikhael, 115 F.3d at 305)) (inter-
indicated in his initial testimony that he
nal quotation marks omitted).
didn't have time because he's studying and
trying to better himself. He had an educa-
This court regards the reasonableness in-
tion.
quiry as one into both subjective and objective
fear. To establish the objective reasonableness
That passage is the extent of the IJ's finding
of a well-founded fear of future persecution,
concerning Zhao's alleged fear of future perse-
the alien must prove that
cution on returning to the People's Republic of
China. In determining the objective justi-
(1) he possesses a belief or characteristic a
fication for that fear, the IJ focused solely on
persecutor seeks to overcome by means of
Zhao's Falun Gong practice in the United
punishment of some sort; (2) the persecutor
States.
is already aware, or could become aware,
that the alien possesses this belief or char-
In essence, the IJ reasoned that Zhao could
acteristic; (3) the persecutor has the capa-
not have a well-founded fear of future per-
bility of punishing the alien; and, (4) the
secution because he seldom practices Falun
persecutor has the inclination to punish the
Gong publicly in New York. Zhao argues that
alien.
the IJ drew the wrong conclusions from the
record testimony and failed to consider other
Eduard, 379 F.3d at 191 (citing Matter of Mo-
testimony that supports his claim. Noting the
gharrabi, 19 I & N Dec. 439, 446 (BIA
self-evident flaws in the IJ's apparent infer-
1987)).
ences, we agree.
Two further legal points merit repeating.
With respect to the first element of the rea-
First, the test does not require Zhao to prove
sonableness inquirySSwhether the applicant
that he had been personally targeted, because
possesses a belief or characteristic that a per-
such an interpretation would render the future
secutor seeks to overcome by means of pun-
persecution inquiry redundant of the past
ishment of some sortSSthe government does
persecution analysis. See id. at 192. Second,
not dispute that Zhao is a Falun Gong practi-
Zhao need not prove that the Chinese govern-
tioner. The IJ explicitly notes that Falun Gong
ment was actually aware that he was a Falun
fits within the statutory meaning of the word
10

"religion." In her mystifying analysis, the IJ in-
(1) that in his hometown, Zhao participated
fers from Zhao's infrequent public Falun Gong
publicly in Falun Gong activities and (2) that
participation that he no longer qualifies for
the local authorities visited his house to look
protection under the statute.
for him on several occasions.
This reasoning is deeply flawed. Zhao's
The government urges us not to connect
testimony establishes that his participation in
the various dots--(1) that Zhao was
public Falun Gong activities was not an accu-
videotaped partaking in a Falun Gong
rate proxy for his actual fidelity to the practice.
demonstration; (2) that Falun Gong prac-
He continued to practice Falun Gong in
titioners are objects of Chinese government
private almost every day. The 1999 Country
persecution; (3) that Zhao's master was
Reports establish that the Chinese government
arrested; and (4) that the police visited Zhao's
indeed targeted Falun Gong practitioners for
home looking for him. Although the original
punishment. The 2002 Country Reports are
record does not contain direct evidence that
even more explicit on this score.13
the authorities were seeking out Zhao because
of his Falun Gong participation, that inference
With respect to the second element of the
is unavoidable in light of Zhao's credited,
reasonableness inquirySSwhether the People's
uncontroverted testimony. Moreover, Zhao
Republic of China is already aware, or could
need not rely on the unauthenticated
become aware, that the applicant possess this
documents to support the inference.
belief or characteristicSSthe record also estab-
lishes that Zhao meets his burden. The record
With respect to the third and fourth ele-
is replete with uncontroverted testimony both
ments, the supplemental documentation estab-
lishes not only that the Chinese government
has the capability and inclination to punish Fal-
13 We present much of this information in the
un Gong practitioners, but also that it has
discussion of Zhao's motion for reconsideration.
already done so. Those facts require no fur-
For example, according to the Department of State
ther elaboration here.14 The two sets of
International Religious Freedom Report 2002,
Country Reports confirm that the People's
Republic of China is capable of, and intends to,
[s]ince the [Chinese] Government banned the
crack down on Falun Gong practitioners.
[Falun Gong] in 1999 and began a comprehen-
sive nationwide repression of the movement, the
practice of Falun Gong or possession of its
literature has been sufficient grounds for prac-
14 The 1999 Country Reports explain that in
titioners to receive punishment ranging from
July of that year the government of the People's
loss of employment and education opportunities
Republic of China initiated a crackdown against
to imprisonment. Some Falun Gong members
the movement, imprisoning thousands and beating
have been tortured in custody and there have
those who refused to recant their beliefs. The two
been reports that several hundred or more Falun
Houses of Congress unanimously passed a concur-
Gong adherents have died in detention since
rent resolution condemning those actions. As dis-
1999. Falun Gong members who "disrupt pub-
cussed above, the 2002 Country Reports, which the
lic order" or distribute publications may be sen-
BIA should have re-opened the record to include,
tenced to 3 to 7 years in prison . . . .
make evident that the Chinese government em-
ployed these tactics against not only core leaders
(Emphasis added.)
but also mere practitioners.
11

At oral argument the government took the
The IJ cites Zhao's lack of contact with
position that, although the Chinese govern-
government officials as though one can rea-
ment may punish mere Falun Gong practitio-
sonably infer that they were not looking for
ners (rather than leaders) administratively,
him. The record, however, is replete with un-
such penalties do not amount to persecution
controverted testimony that Zhao was fleeing
within the meaning of the statute. First, the
the authorities on discovering that they were
2002 Country Reports reveal the govern-
searching for him.
ment's contention at oral argument to be in-
consistent with the Attorney General's assess-
Finally, the characterization of Zhao as
ment that even lower level practitioners are
"traveling" about the People's Republic of
punished.15 Second, the government is reading
China for six months is misleading and borders
into the 1999 Country Reports a clean
on being disingenuous. The record establishes
distinction between leaders and mere practi-
that for that entire period of time, Zhao was
tioners where, in fact, that distinction does not
either fleeing the authorities or hiding. Al-
exist. Third, the government cites no support
though the record indicates that Zhao did
for this proposition, which flies in the face of
work while he was at his uncle's construction
common sense when we consider that the "ad-
site, it is equally obvious that he was there
ministrative" penalties include severe fines,
primarily to evade the authorities. The BIA
imprisonment, and torture.
therefore abused its discretion in ruling that
Zhao did not have the well-founded fear of fu-
The BIA's opinion seems to premise denial
ture persecution necessary to sustain an asy-
on three major considerations: (1) that Zhao
lum claim.
now rarely practices Falunn Gong publicly;
(2) that he had no "direct contact with govern-
IV.
ment officials"; and (3) that he was able to
An alien who fears persecution if returned
travel freely about the People's Republic of
to a particular country has two potential
China for six months after the police expressed
sources of relief under the INA: asylum and
interest in him. As we have said, the
withholding of removal. A grant of asylum
frequency with which Zhao now practices Fal-
permits the alien to remain in this country; a
un Gong publicly bears no relationship to how
withholding of removal forbids his removal to
likely the Chinese government is to persecute
the persecuting country.16 A grant of asylum
him on his potential return.
is within the Attorney General's discretion, but
restriction on removal is granted to qualified
The BIA's statement that Zhao did not
aliens as a matter of right. See INS v.
have direct contact with government officials
Cardoza-Fonseca, 480 U.S. 421, 424 (1987).
is equally delphic--the reason Zhao did not
We grant Zhao's asylum application, so we
come into direct contact with Chinese officials
need not consider the removal issue.17
is that he was evading them. Such lack of con-
tact may militate against a finding of past
16
persecution, but that is not the argument on
See INA �� 208 & 241(b)(3), codified at
which Zhao's application stands.
8 U.S.C. �� 1158, 1231(b)(3).
17 Because we resolve the case on other
grounds, we do not reach Zhao's due process
15 See supra note 13 and part II.B.2.
(continued...)
12

V.
here, however, differ from those appellate
The Attorney General enjoys significant dis-
courts generally confront in reviewing a mo-
cretion in making asylum determinations. That
tion to reopen. In Ventura, for example, the
authority, however, is not plenary. The IJ
BIA had not considered the changed country
credited all of Zhao's testimony but interpreted
conditions argument at all. See id. Here, to
it in such a way that allowed her to rule
the contrary, the Board has already rejected
against him on gro unds of legal sufficiency.
the "changed country conditions" proposition,
The IJ's summary of Zhao's testimony consists
so our ruling on the persecution issue does not
entirely of conclusory remarks, mischar-
usurp the Board's authority to rule on it first.19
acterizations of various events, and non-sequi-
Moreover, although the language in Ventura is
ters.
strong, it remains precatory. The Court could
have worded its holding categorically, and its
The BIA rubber-stamped the IJ's ruling and
failure to do so must be a conscious decision.
then dismissed (in a single sentence), as re-
We cautiously conclude that this case exhibits
dundant, the detailed corroborating materials
the narrow set of circumstances that requires
Zhao submitted in his motion to reopen.
no remand.20
Zhao's testimony, if true, is likely sufficient to
justify our decision to grant his petition and
overturn the BIA. Once we consider the doc-
18(...continued)
umentation excluded in error, however, the de-
supports the law's ordinary remand requirement
cision is an easy one. The Attorney General's
does so here. The Agency can bring its ex-
discretion is not so broad so as to allow him to
pertise to bear upon the matter; it can evaluate
reject asylum applications without a logical
the evidence; it can make an initial determina-
explanation.
tion; and, in doing so, it can, through informed
discussion and analysis help a court later deter-
Ordinarily, upon allowing reopening of the
mine whether its decision exceeds the leeway
record, we would remand the persecution
that the law provides.
question to the BIA. See INS v. Ventura, 537
U.S. 12, 16-17 (2002).18 The circumstances
Ventura, 537 U.S. at 16-17.
19 The final sentence of the BIA's opinion reads:
"To the extent that the respondent seeks reopening
17(...continued)
for the submission of previously unavailable
claims.
evidence, we find insufficient cause to reopen, as
the respondent's new evidence largely repeats the
18 The specific language in Ventura is worth
extensive country condition information already in
noting:
the record." The BIA had already determined that,
based on the record evidence sans supplemental
Generally speaking, a court of appeals should
reports, Zhao had no well-founded fear of future
remand a case to an agency for decision of a
persecution.
matter that statutes place primarily in agency
hands. This principle has obvious importance
20 We also note that in Ventura, 537 U.S. at 17-
in the immigration context. The BIA has not
18, the Court explicitly stated that the State De-
yet considered the "changed circumstances"
partment report on which the Ninth Circuit had
issue. And every consideration that classically
relied was equivocal with respect to the relevant
(continued...)
(continued...)
13

The petition for review is GRANTED, and
the order of the BIA is REVERSED. This
matter is remanded to the BIA for any further
necessary proceedings in accordance with this
opinion.
ENDRECORD
20(...continued)
country conditions. Similar equivocation is absent
in the State Department and Religious Freedom
reports that constitute Zhao's evidence of "changed
country conditions" for Falun Gong in the People's
Republic of China.
14

EMILIO M. GARZA, Circuit Judge, concurring in part and dissenting
in part:
I concur in the majority's well-reasoned decision, except for its
final resolution. The majority correctly notes that "the proper
course, except in rare circumstances, is to remand to the agency
for additional investigation or explanation." Ventura, 537 U.S. at
16. However, this case does not present the court with "rare
circumstances" that would warrant granting asylum without first
remanding the case to the BIA for further review. While the BIA
did consider the "changed country conditions," it did so only in
the context of the motion to reopen. The BIA was never given an
opportunity to "bring its expertise on the matter; [to] evaluate
the evidence; and . . . [provide an] informed discussion and
analysis" on these changed circumstances as they relate to Zhao's
actual asylum claim. Id at 17. As a result, the majority has
"seriously disregarded the agency's legally mandated role." Id.
The more prudent and proper approach is to reverse the BIA's order
denying Zhao's motion to reopen, and to remand the case to the BIA
for additional investigation or explanation.
Accordingly, I respectfully DISSENT IN PART.